Enid Blyton inspired sketch show hit by legal threat

It’s not the sort of challenge Enid Blyton’s original Famous Five ever had to deal with…

But the young comedians behind a parody of the children’s favourite have been forced to cull the gang to a less-famous Four following an intimidating legal threat from the publisher that owns the rights to the classic books – claiming a trademark covered the use of the word 'Five'.

But last night one independent copyright lawyer called the case against the stage show ‘tosh’ and ‘absolute nonsense’.

Publishing giant Hachette fired off a warning letter to the newly-graduated Cambridge students behind Five Go Off on One! after details of their show appeared in the programme for the Edinburgh Fringe.

In it, legal director Maddie Mogford claimed that using a title containing ‘Five Go….’ infringed their trademark on The Famous Five, with several of Blyton’s books having a similar title. She claimed the unauthorised use of the title would be ‘likely to mislead customers into believing your production… is endorsed by us’.

It seems that the company evoked trade mark law because copyright disputes offer a defence for those making parodies.

After receiving the threat, the show’s creator Robert Eyers offered to change the title, saying: ’Their trademark is registered as The Famous Five, not Five Go… but we decided to give in rather than argue this point.’

But Hachette weren’t happy with the new title he came up with, The Reasonably Well Known Five: An Unofficial, Unlicensed and Unrestrained Parody – and even wanted to ban him from using the word ‘Five’ in the title.

Their follow-up legal letter said:  ‘We remain concerned because of your use of the term "Five" and the allusion to "Famous"’ – and they demanded that Eyers promise not to use the word ‘Five’ at all, giving him 24 hours to comply.

‘That was infuriating,’ Eyers told Chortle. ‘But  as our posters needed to go to print the next day and we had to come to a resolution within hours. They’d timed this perfectly (presumably accidentally) so that we pretty much had to give in, or just ignore them and risk playing this out in court. Fringe shows cost far too much as it is, so that wasn’t really an option.’

Eyers – who happens to have a law degree – felt forced to change the title to Four Go Off On One! A Jolly Good Romp Through Childhood – with ‘poor old Timmy’, the dog, expunged from the sketches.

Last night, intellectual property lawyer James Mitchell, of JP Mitchell Solicitors in Hampton in Middlesex, said the legal basis for Hachette’s threats were ‘flimsy at best’.

He said: ‘This is a shabby letter which seems to make three separate points

‘The first is about trademark, although you would normally be obliged under good practice to explain what the details of the trade marks marks are, where they are registered and what they protect, which the letter does not do.

‘Hachette are claiming Famous Five as a trade mark. But unless I’m missing something, there’s not enough overlap with that and the title Five Go Off On One to warrant a claim.

‘Then there’s the copyright issue. But it has long been established that a title alone is not substantial enough for copyright protection.

‘The third issue is passing off, which is a civil complaint against likely misrepresentation. But this show will get an audience that will know it is some sort of parody. I think they are barking at the moon… this is absolute nonsense. Tosh.’

He also said that the initial letter may open Hachette up to action themselves for ‘unjustified threat’, a law designed to make sure trade mark holders do not use strong-arm tactics.

‘The letter is flimsy at best,’ he said. ‘If I was their lawyer, I would respond tearing it to bits and suggest that if Hachette sent another we would take action for unjustified threat.’

The Famous Five have been the subject of parody before, of course, most notably the 1982 Comic Strip film, Five Go Mad in Dorset, starring Dawn French, Jennifer Saunders and Adrian Edmondson, and its sequels.

Hachette even print their own ‘adult’ takes on Blyton’s books, such as Five On Brexit Island and Five Go Gluten Free.

In fact, Eyres said: ’I can’t help but think Hachette would have let this go were they not currently putting a lot of marketing effort behind their own series of Famous Five parodies.

‘I’m completely, 100 per cent  behind the idea of intellectual property and think that it’s very important for creatives to be afforded legal protection of their ideas. The parody exception in copyright law, however, exists for a good reason: parodies are almost always mutually beneficial. They reignite interest in the original work, while creating a new piece of art in the process. 

‘You can see this even just by considering Enid Blyton - the phrase "lashings of ginger beer"  has entered the UK cultural lexicon, despite originating from Channel 4’s parody film rather than Blyton's original texts. The parody didn’t damaged Blyton’s credibility - it extended her legacy.’

A spokeswoman for Hachette said: ‘We have no intention of preventing the performance of a genuine parody and have demonstrated with our of Famous Five parodies that we can take and make a joke.

‘However, we own the trade mark "The Famous Five" and we need to ensure that it is protected, that the phrased "Five" is not used in a misleading way to create a  link with our brand and that its use does not conflict with any licences we have already issued. The copyright laws relating to parodies do not apply to trade marks.’

The spokeswoman reiterated that the company believed that the use of the word ‘Five’ in the title of the Fringe show  ‘would be likely to mislead people into thinking this production originates with from or was licensed by us, and would amount to a claim for passing off.’

And she said of Mitchell’s comments: ‘As an intellectual property lawyer he should be aware you cannot bring an action for unjustified threats in respect of supplying services, in this case theatre productions.

Four Go Off On One! A Jolly Good Romp Through Childhood  will be at the Gilded Balloon at 4.30pm daily during the Fringe.

Published: 3 Jul 2017